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MURDER AT THE SUPERMARKET…

Posted on: 19 Jun 12

Summary

No, not the title of a new murder-mystery novel, but the facts of a case involving J Sainsbury PLC concerning the issue of “Vicarious Liability”. “Vicarious Liability” is the phrase used to describe the situation where a third party is responsible for acts committed, not by itself, but by another under its control.

No, not the title of a new murder-mystery novel, but the facts of a case involving J Sainsbury PLC concerning the issue of “Vicarious Liability”. “Vicarious Liability” is the phrase used to describe the situation where a third party is responsible for acts committed, not by itself, but by another under its control. Often in the employment relationship, the employer is said to be responsible (or vicariously liable) for the acts of its employees whilst they are “at work”. However, the dividing line between when an act is or is not carried out “at work” is a fine one – most noticeably in cases involving after-work social events.

When can it be said that an employee’s actions are so extreme to avoid an employer being responsible for them?

The facts of Vaickuviene –v- J Sainsbury PLC involve an incident that occurred between 2 employees: Mr Romasov and Mr McCulloch. Mr McCulloch was a member of the British National Party and had extreme xenophobic views about immigrants from the part of Eastern Europe Mr Romasov originated from. On 15 April 2009, following an altercation between the two employees (at work), McCulloch took a knife from the kitchenware section of the store and stabbed Mr Romasov to death in one of the supermarket aisles. Mr McCulloch was subsequently convicted of murder.

Two days before Mr Romasov was murdered, Mr McCulloch was heard racially abusing him by other staff and Mr Romasov wrote to his line manager complaining that racist remarks had been made towards him by McCulloch. The line manager, however, did nothing about the letter. No steps were taken to investigate or suspend Mr McCulloch or indeed move either party to another shift.

Mr Romasov’s family say that Sainsbury’s should be held responsible for Mr McCulloch’s actions and have brought a claim under the Harassment Act 1997 (PHA 1997). The Scottish Court of Session had to decide whether, in principle, to allow the claim to proceed.

Sainsbury’s said that the actions of Mr McCulloch were so extreme that it could not possibly be said that they fell within his “duties”. It also argued that the assault was “personal” and nothing to do with the employment. The family relied on a previous decision of the House of Lords in 2007 where it was held that an employer can be vicariously liable under PHA 1997 for harassment committed by an employee in the course of employment.

The crucial point for the court to consider was whether the murder was “closely connected” to the employment so as to possibly render Sainsbury’s liable for the death of Mr Romasov.

The court decided that there was sufficient connection between Mr McCulloch’s actions and his employment to allow the case to proceed. This does not mean that Sainsbury’s are liable but that further investigation is needed. What appeared to have gone against Sainsbury’s was the inaction of the line manager who knew of the verbal abuse but did nothing about it. The court said that the verbal abuse of Mr Romasov was the “first step” in the chain of events leading to his murder.

A case based on extreme events but one that does highlight the need for employers to be vigilant. Here, the employer knew – through the line manager – 2 days before the murder, that there was an issue of abuse. Who’s to say that, if Mr McCulloch had been suspended or had been moved to a different shift, whether the tragic events of 15 April 2009 would have occurred? We await this decision with great interest, when it comes to a full hearing, as if the family succeed it will have a big impact on the area of vicarious liability.

Line managers should be reminded to take complaints seriously and act promptly – here the line manager said he was “too busy” to deal with Mr Romasov’s letter. Employers should review their policies on dealing with complaints to ensure line managers are aware of the employer’s expectations and when to ask for help from HR or to escalate concerns through appropriate channels. No-one can foresee what may happen when a complaint is raised; however, this case shows again the need for employers to be pro-active.

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